dismissed O-1B Case: Horse Training

(b)(6)
• 
Date: FEB 0 5 2013 Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Dcparlrn"nt of Homeland Sc.:urit y 
U.S. Citi zenship and l111migr:lli on S~rv ic"t :s 
Administrati ve 1\ppc :l ls Ollicc· !1\:\0l 
20 Massach usc'lts :\vc .. N.W., MS 20'10 
Washin!!ttHI. DC :20'i2'l-2fi'JO 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case . Please be advi sed that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered , you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-2908 , Notice of Appeal or Motion, with a fee of $6.10 . The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § _103.5(a)(l)(i) requires any motion to h<.: filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you , 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an 0-1 alien 
with extraordinary ability in the arts under section 101(a)(15)(0)(i) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(0)(i). The petitioner breeds and trains horses. It 
seeks to employ the beneficiary as an assistant horse trainer/rider for a period of three years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary 
qualifies as an alien of extraordinary ability in the arts. The director determined that the petitioner failed 
to establish that the beneficiary meets the evidentiary criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), and 
failed to submit evidence to satisfy any of the six evidentiary criteria set forth at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B), of which three must be met to establish eligibility. In addition, the director 
determined that the regulatory language precludes the consideration of comparable evidence under 
8 C.F.R. § 214.2(o)(3)(iv)(C) in this case, as there is no indication that eligibility for 0-1 
classification in the beneficiary's occupation as an assistant horse trainer/rider cannot be established 
by submitting documentation relevant to at least three of the six criteria at 8 C.F.R. § 214.2(o)(3) 
(iv)(B). In fact , as indicated in the decision, the petitioner submitted evidence relating to three of the 
six criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B). Further, the director found that the petitioner 
misclassified the beneficiary's claimed area of extraordinary ability as "arts" rath er than "athl etics." 
On appeal, counsel for the petitioner asserts that the petitioner submitted evidence to satisfy at least 
three of the six evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B). Counsel submits a brief and 
additional evidence in support of the appeal. 
I. The Law 
Section 101(a)(15)(0)(i) of the Act provides classification to a qualified alien who has extraordinary 
ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim, whose achievements have been recognized in the field through 
extensive documentation , and who seeks to enter the United States to continue work in the area of 
extraordinary ability. 
Section 10l(a)(46) of the Act states that the term "extraordinary ability" means, for purposes of section 
101(a)(15)(0)(i) , in the case of the arts, distinction. 
Pursuant to the definition at 8 C.F.R. § 214.2(o)(3)(ii) pertaining to aliens of extraordinary abi.lity in the 
arts, "distinction" means a high level of achievement in the arts evidenced by a degree of skill and 
recognition subst antially abov e that ordinarily encountered to the extent that a person described as 
prominent is renowned , leading , or well-known in the field of arts. 
The regulation at 8 C.F.R. § 214.2(o)(3)(iv), states, in pertinent part: 
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Evidentiary criteria for an 0-1 alien of extraordinary ability in the arts. To qualify as 
an alien of extraordinary ability in the field of arts, the alien must be recognized as being 
prominent in his or her field of endeavor as demonstrated by the following: 
(A) Evidence that the alien has been nominated for, or the recipient of, significant 
national or international awards or prizes in the particular field such as an 
Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or 
(B) At least three of the following forms of documentation: 
(1) Evidence that the alien has performed, and will perform, services as a lead 
or starring participant in productions or events which have a distinguished 
reputation as evidenced by critical reviews, advertisements, publicity 
releases, publications, contracts, or endorsements; 
(2) Evidence that the alien has achieved national or international recognition 
for achievements evidenced by critical reviews or other published 
materials by or about the individual in major newspapers, trade journals , 
magazines, or other publications; 
(3) Evidence that the alien has performed, and will perform, in a lead, 
starring, or critical role for organizations and establishments that have a 
distinguished reputation evidenced by articles in newspapers, trade 
journals, publications, or testimonials; 
(4) Evidence that the alien has a record of major commercial or critically 
acclaimed successes as evidenced by such indicators as title, rating, 
standing in the field, box office receipts, motion picture or television 
ratings, and other occupational achievements reported in trade journals, 
major newspapers, or other publications; 
. (5) Evidence that the alien has received significant recogmt10n for 
achievements from organizations, critics, government agencies, or other 
recognized experts in the field in which the alien is engaged. Such 
testimonials must be in a form which clearly indicates the author's 
authority, expertise, and knowledge of the alien's achievements; or 
(6) Evidence that the alien has either commanded a high salary or will 
command a high salary or other substantial remuneration for services in 
relation to others in the field , as evidenced by contracts or other reliable 
evidence; or 
(C) If the criteria in paragraph ( o )(3)(iii) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in 
order to establish the beneficiary's eligibility. 
(b)(6)
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Additionally, the regulation at 8 C.F.R. § 214.2(o)(2)(iii) provides: 
The evidence submitted with an 0 petition shaH conform to the following: 
(A) Affidavits , contracts, awards, and similar documentation must reflect the nature of 
the alien's achievement and be executed by an officer or responsible person 
employed by the institution, firm, establishment, or organization where the work 
was performed. 
(B) Affidavits written by present or former employers or recognized experts certifying 
to the recognition and extraordinary ability ... shaH specifica11 y describe the 
alien's recognition and ability or achievement in factual terms and set forth. the 
expertise of the affiant and the manner in which the affiant acquired such 
information. 
The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent 
upon the quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The 
mere fact that the petitioner has submitted evidence relating to three of the criteria as required by the 
regulation does not necessarily establish that the alien is eligible for 0-1 classification. 59 Feel Reg 
at 41820. 
In determining the beneficiary's eligibility under these criteria, the AAO will fo11ow a two-part approach 
set forth in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. 
USCIS, 2010 WL 725317 (91h Cir. March 4, 2010). Similar to the regulations governing this 
j,{ ' nonimmigrant classification, the regulations reviewed by the Kazarian court require the petitioner to 
submit evidence pertaining to at least three out of ten alternative criteria in order to establish a 
beneficiary's eligibility as an alien with extraordinary ability. Cf 8 C.F.R. § 204.5(h)(3). 
Specifically, the Kazarian court stated that "the proper procedure is to count the types of evidence 
provided (which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper 
conclusion is that the applicant has failed to satisfy the regulatory requirement of three types of 
evidence (as the AAO concluded)." /d. at *6 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained 
the "final merits determination" as the coronary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor ," 8 
C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of ex'pertise." 8 
C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained national 
or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. ~ 
1153(b )(l )(A)(i). 
/d. at *3. 
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Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then , if qualifying 
under at least three criteria, considered in the context of a final merits determination. The final merits 
determination analyzes whether the evidence is consistent with the statutory requirement of "extensive 
documentation" and the regulatory definition of "extraordinary ability" as "one of that small percentage 
who have risen to the very top of the field of endeavor." 
The AAO finds the Kazarian court's two-part approach to be appropriate for evaluating the regulatory 
criteria set forth for 0-1 nonimmigrant petitions for aliens of extraordinary ability at 8 C.F.R. 
§ 214.2(o)(3)(iii), (iv) and (v). Therefore, in reviewing Service Center decisions, the AAO will apply 
the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new 
analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two­
step analysis dictated by the Kazarian court. See Soltane v. DO.J, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that the AAO reviews appeals on a de n·ovo basis). 
A. The Beneficiary's Eligibility under the Evidentiary Criteria 
In the present matter, the petitioner states that the evidence submitted in support of the petition 
establishes the beneficiary is renowned, leading and well-known in the arts. In denying 
the petition, the 
director determined that the evidence submitted does not meet any of the criteria set forth at 8 C.F.R . 
§ 214.2( o )(3)(iv)(B). The AAO finds that the petitioner has failed to submit evidence that satisfies 
three of the evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B), and has not . established that the 
beneficiary has a high level of achievement in the arts evidenced by a degree of skill and recognition 
substantially above that ordinarily encountered to the extent that she is prominent , renowned , leading , or 
well-known in the field of arts as an assistant horse trainer/rider. 8 C.F.R. § 214.2(o)(3)(ii) . 
., Accordingly, for the reasons discussed below, the AAO finds that the director properly denied the 
petition. 
Preliminary, the AAO emphasizes that the statute requires that the beneficiary seek entry into the 
United States "to continue work in the area of extraordinary ability." Section I 0 I (a)( 15)(0)(i) of the 
Act, 8 U.S.C. § 1101(a)(15)(0)(i) (2007). The director based her determination on a finding that the 
proffered position involves horse training, not competitive horse riding which is not the same area of 
exp ertise. The AAO agree s that the evidence of record supports the director's determination. In 
this case, the petition lists the proffered position as an "assistant thoroughbred trainer /rider." In 
addition, the description of duties in the supplement to the petition clarifies that the beneficiary will 
not be riding horses in competition, but will be riding horses as part of her training duties "to 
exercise and condition them for competitive races." Further, the beneficiary's curriculum vitae 
(C.V.) indicates that all her previous employment has been as an exercise rider and not as a 
competitive horse rider. Therefore, the beneficiary's accomplishments as an assistant trainer /rider are 
measured by the results of the horses she assists in training. 
1 
While acknowledging that the petitioner has filed this petition asserting that the beneficiary's area or extraordinarily 
ability is in the arts (we have more fully discus sed below the beneficiary's are a o f extraordinarily ability) , the AAO 
notes that gener ally co mpetitive athletics and athletics instruction are not the same area of expertise and US C IS will not 
assume that an ali en with extraordinary ability as an athlete has the same level of expertise as a coach or trainer in his or 
her sport. 
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As noted above, simply submitting evidence to satisfy the evidentiary criteria will not automatically 
establish eligibility for this visa classification. The mere fact that the petitioner has submitted 
evidence relating to three of the criteria as required by the regulation does not necessarily establish· 
that the alien is eligible for 0-1 classification. 59 Fed Reg 41818,41820 (August 15, 1994). 
If the petitioner establishes through the suq)mission of documentary evidence that the beneficiary has 
been nominated for or has been the recipient of, significant national or international awards or prizes 
in the particular field pursuant to 8 C.F.R. § 214.2(o)(3)(iv)(A), then it will meet its burden of proof 
with respect to the beneficiary's eligibility for 0-1 classification. The regulation lists an Academy 
Award, an Emmy, a Grammy, or a Director's Guild award as examples of qualifying significant 
awards or prizes. 
The petitioner does not appear to claim that the beneficiary qualifies for 0-1 classification on the 
basis of her nomination for or receipt of such an award. As such, the petitioner has not established 
that the beneficiary has won a significant national or international award or prize in her field . 
Accordingly, the petitioner must establish the beneficiary's eligibility under at least three of the six 
criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). The petitioner claims that the beneficiary meets 
the following criteria: 2 
Evidence that the alien has performed, and will perform services as a lead or starring 
participant in productions or events which have a distinguished reputation as evidenced 
by critical reviews, advertisements, publicity releases, publications , contracts, or 
endorsements. 
· Counsel addresses this criterion on appeal, asserting that the petitioner has submitted 
evidence that the beneficiary has participated as a lead or starring partiCipant in training the 
petitioner's racehorses for distinguished events at which the horses currently perform or will 
perform. 
As evidence that the beneficiary has participated as a lead or ·starring participant , the petitioner lists 
as examples that the beneficiary "trained at the Ladies ' Classic . . . and 
performed services internationally at the 2011 Dubai International Racing Carnival, where [the 
beneficiary] was .assistant trainer for " The petitioner also refers to a March 2, 2012 
five-year employment agreement between the petitioner and the beneficiary, previously submitted 
into the record. The employment agreement lists the beneficiary's duties as an assi?tant trainer /rider 
and states that the petitioner and the beneficiary agree that the beneficiar y' s services "are 
extraordinary, exceptional and unique." However, without documentary evid ence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec . 533, 534 (BIA 
1988); Matter of Laureano , 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez , 17 l&N Dec. 
503 , 506 (BIA 1980). Although the petitioner has submitted three brief articles regarding, 
respectively the racehorse and events including the Ladies' Classic and the 
Dubai World Cup Carnival, none of the articles specifically mention the beneficiary by name. This 
' 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
(b)(6)
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evidence fails to establish that the beneficiary performed services as a lead or starring participant in any 
production or event. 
As evidence that the beneficiary has performed in productions or events that have a distinguished 
reputation, the petitioner states that the distinguished events are "the tracks at which the horses 
perform." However, the petitioner must establish that the beneficiary has performed services as a 
lead or starring participant in productions or events which have a distinguished reputation . The 
petitioner has not submitted critical reviews, advertisements, publicity releases, publications or other 
evidence to establish that the events themselves have a distinguished reputation, as required pursuant to 
the plain language of the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). As stated above, the 
petitioner refers to brief articles regarding the Ladies' Classic and the Dubai World Cup Carnival. 
However, the publications do not establish the' distinguished reputation of the events. 
Further , in order to meet this criterion, the petitioner must establish that the beneficiary will petj"orm 
services as a lead or starring participant in productions or events which have a distinguished 
reputation upon approval of the petition. Thepetitioner again refers to the employment agreement 
between the petitioner and the beneficiary which states the beneficiary shall perform the specified 
duties "at all racetracks where the racing stable assigned to him performs." The petitioner also refers 
to a previously submitted listing of 2012 race dates, containing highlighted information which the 
petitioner asserts "shows the beneficiary is contracted to work at various locations," including the 
racetracks 
.. However, the petitioner has not submitted critical reviews, advertisements , 
publicity releases, publications or other evidence to establish the identity of any upcoming events at 
which the beneficiary will perform, or to establish that the events themselves have a distinguished 
reputation, as required pursuant to the plain language of the regulation at 8 C.F.R. 
§ 214.2( o )(3)(iv )(B)(l ). Therefore, the petitioner has offered no information regarding the 
beneficiary performing services as a leading or starring participant in any upcoming events or 
productions. 
In sum, the petitioner has nejther identified nor documented, through submission of the evidence 
prescribed by regulation, the beneficiary's previous or forthcoming lead or starring role in events 
with a distinguished reputation. The petitioner has not established that the beneficiary meets the 
criterion at 8 C.F.R. ~ 214.2(o)(3)(iv)(B)(l). 
Evidence that the alien has performed, and will perform, in a lead, starring, or critical 
role for organizations and establishments that have a distinguished reputation 
evidenced by articles in newspapers, trade journals, publications, or testimonials. 
The regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3) requires the petitioner to submit evidence that the 
beneficiary has performed, and will perform, in a lead, starring, or/critical role for organizations and 
establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals , 
publications, or testimonials. 
Firstly, upon review the evidence submitted fails to demonstrate that the beneficiary performed a lead or 
critical role. With respect to the beneficiary's previous employment, . the petitioner provided the 
beneficiary ' s C.Y. and four testimonial letters. 
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of in Suffolk, England, states that the beneficiary worked for him 
from January 2000 3 until at least November 23, 2002, the date of the letter, as a stable hand and 
work rider, and that her duties included "riding, caring for horses and mucking out." He states that 
the beneficiary was later appointed pupil assistant and assigned additional responsibilities including 
feeding the horses in the absence of a head lad or assistant trainer. 
Head Lad to I in Suffolk, England, states 
that the beneficiary worked for the company from November 2003 until at least November 27, 2004 , 
the date ofthe letter, as a rider and that the beneficiary is hard-working, reliable and conscientious. 
of . states he employed the beneficiary from December 2002 until April 2003 
as a rider. 4 He ~tates that the beneficiary rides very well, and is polite and hard-working. 
The petitioner submitted a letter stating that the beneficiary has worked for him since 
2005 as an assistant trainer. He states that 80% of his stable consists of Ex-European horses, for 
which he requires a person such as the beneficiary, who he states has "a lot of experience and 
knowledge of European racing and pedigrees . . . [and] training methods." He explains that 
European horses are trained very differently from those in America. He states that European horses 
are trained for longer periods of time "on a variety of training grounds in a very tranquil setting.'' 
He states that the beneficiary would be an invaluable asset to his business and "it \VOuld be 
impossible to find someone locally with her knowledge and experience." 
The petitioner has submitted additional documentation to establish that the beneficia v oerformed a Lead 
or critical role. The petitioner submitted press releases from 
respectively, which mention that the 
beneficiary is the assistant trainer/exercise rider of the racehorses _ and , and 
contain her brief statement regarding prospects in the Godolphin Mile race in Dubai . 
The petitioner has also submitted a copy of California Horse Racing Board Rule 896, stating that an 
assistant trainer "shall be equally responsible with the employing trainer for the condition of the horses 
in their care." The petitioner further submitted license statistics from the California Horse Racing 
Board indicating that there were 310 current assistant trainer licenses issued in 2010 and 2011. 
In order to establish that the beneficiary performed a leading or critical role for an organization or 
establishment with a distinguished reputation, the petitioner must establish the nature of the 
beneficiary's role within the entire organization or establishment and the reputation of the 
organization or establishment. The petition states that the petitioner currently employees 16 
employees. However, the petitioner does not state whether it employs other assistant trainers/riders. 
There is no evidence demonstrating how the beneficiary's role as assistant trainer/rider differentiated 
her from others where she worked. For instance, the petitioner did not submit evidence such as an 
organizational chart which would demonstrate the beneficiary's position within the organization , or 
otherwise describe the hierarchy among the training staff. 
'The testimony of the witness is inconsistent with the beneficiary's C.V. which indicates that the benef~ciary worked for 
beginning in January 2001. 
4
Th<.: b<.:neficiary's resume also indicat<.:s that was associated with in Dubai. 
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Overall , the documentation submitted by the petitioner does not establish that the beneficiar y, as an 
assistant trainer/rider, was responsible for the success or standing of the racing stables where she 
worked to a degree consistent with the meaning of "leading, starring or critical.'' While the AAO 
does not doubt that the beneficiary provided valuable services to the petitioner and her other previous 
employers , we concur with the director that the petitioner has failed to support the proposition that the 
beneficiary has performed a leading or critical role for those establishments. 
Secondly, the petitioner has orovided no independent evidence to establish that the beneliciary's 
orevious employers, in Kentucky, in Florida, in England , 
in England, stables in Dubai, or of 
in England have distinguished reputations, and the testimonial letters 
submitted do not sufficiently address the reputation of these organizations. 
Thirdly, the petitioner has not provided evidence to establish that it has a distinguished reputation as 
a horse training stable. The petitioner's distinguished reputation must be evidenced by articles in 
newspapers, trade journals, publications, or testimonials. 8 C.F.R. § 214.2(o)(3)(iv)(B)(J). The 
petitioner references published materials from 2011 and 2012 regarding horses that it trains, including 
as documentary evidence that would establish that 
it enjoys a distinguished reputation in the field of horse training. The petitioner also provided a listing 
from of the petitioner's Breeders' Cup entries for 2011, and 
The petitioner has further provided a 2012 biography for from 
indicating that he had seven starts in the years I 998 , 2001, 2002 , 
2005 and 2009 , respectively, with no first, second or third-place wins and total Breed ers' Cup 
earnings of The petitioner has provided a trainer-statistics profile page from 
listing the beneficiary's 2012 and career (since 1996) thoroughbr ed racing 
summary, including the total number of starts, the respective number of first, second and third-place 
finishes and the petitioner ' s total earnings. However, the submitted documentation does not 
specifically address the issue of the petitioner ' s reputation in the field of horse training. The 
petitioner has also submitted several testimonial letters which do not the issue of the petitioner's 
reputation in the field of horse training. 
Fourthly, the evidence submitted does not establish how the beneficiary will perform in a lead , starring 
or critical role within the petitioner's horse training company. As stated above, the petition stales that 
the petitioner currently employees 16 employees. However, the petitioner does not state whether it 
employs other assistant trainers/riders. The petitioner has not articulated nor offered additional 
evidence that would distinguish the beneficiary's proposed role as leading, starring or critical among 
those it already employs. 
Based on the foregoing, the AAO concurs with the director that the submitted evidence does not satisfy 
the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 
Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field 
in which the alien is engaged. Such testimonials must be in a form which clearly 
indicates the author's authority, expertise, and knowledge of the alien's achievements. 
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The petitioner has submitted several testimonial letters in support of this criterion . As stat ed above , 
the regulation at 8 C.F.R. § 214.2( o )(2)(iii)(B) provides that affidavits written by present or former 
employers or recognized experts certifying to the recognition and extraordinary ability shall specifically 
describe the alien's recognition and ability or achievement in factual terms, and set forth the expertise of 
the affiant and the manner in which the affiant acquired such information. 
Upon review of the letters, the AAO finds that the petitioner failed to establish that the beneficiary 
has received significant recognition for achievements from organizations, critics, government 
agencies, or other recognized experts in the field. 
a professional, licensed thoroughbred trainer in Pasadena, California, stat es that he 
is familiar with the beneficiary's performance as an assistant trainer in the racetracks in southern 
California. He states that the beneficiary's international experience, strong work ethic and "the 
reputation she has built for herself ' make her uniquely qualified to work in the United States as an 
assistant horse trainer. 
of Anaheim, California states that he "is the owner of several racehorses which the 
petitioner is training. He states that the petitioner has previously trained many former English horses 
for him, and that the petitioner ' s knowledge of dealing with former English horses " is one of the 
major reasons that 1 use him as a trainer." He states , "[the beneficiary] would be a very important 
asset to [the petitioner's] team, as she has the specialized knowledge and experience to handle this 
type of horse." 
Chairman of the states that the beneficiar y is an 
, excellent assistant trainer who has an outstanding record in horseracing. He states the beneficiary 
has worked with the petitioner who he states is a top horse trainer. 
However, 
specialized knowledge and 
acquired such information. 
_ do not specifically describe the beneficiary's 
experience m factual terms or set forth the manner in which they 
In addition, the petitioner references all of the testimonial letters submitted as evidence under the 
criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 
Upon reviewing the evidence from experts in the field of horse training, we note that the majority of 
the letters submitted are from the beneficiary's former or current employers, and primarily discuss the 
beneficiary's innate talent , work ethic , and personal traits, rather than her achievements as an assistant 
trainer/rider. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See Matter of Caron International , 19 I&N Dec. 791, 795-96 (Comm. 1988); 
see also Matter of V-K-, 24 I&N Dec. at 500, n.2. The content of the experts' statements and how they 
became aware of the beneficiary 's reputation are important considerations. Even when wrillcn by 
independent experts, letters solicited by an alien in support of a nonimmigrant petition are of less 
weight than preexisting, independent evidence ofrecognition for achievements in the field. 
(b)(6)
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Based on the foregoing discussion, the petitioner has not submitted evidence to meet the criterion at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(5). 
Evidence that the alien has either commanded a high salary or will command a high 
salary or other substantial remuneration for services in relation to others in the field, as 
evidenced by contracts or other reliable evidence 
The sixth and final criterion requires the petitioner to submit evidence that the beneficiary has either 
commanded a high salary or will command a high salary or other substantial remuneration for services 
in relation to others in the field , as evidenced by contracts or other reliable · evidence . S C.F.R. 
§ 214.2(o)(3)(iv)(B)(6). The petitioner indicated on Form 1-129 that the proffered job is a full.-time 
position and that beneficiary will receive an annual salary of approximately $35,000. The petitioner 
submitted a contract which did not provide the beneficiary's wages. The petitioner did not submit 
any evidence to establish that the beneficiary commanded a high salary in any previous emplo yment. 
On appeal, and in response to the director's request for additional evidence, counsel states that the 
beneficiary's annual compensation plus "winnings" would give the beneficiary a weekly wage of 
$1,000 , or an annual salary of $52,000. However, without documentary evid ence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 l&N Dec. 
503, 506 (BIA 1980) . 
The petitioner provided no explanation regarding the change in the terms of employment stated on 
· ' Form 1-129. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
. · suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho , 19 I&N Dec. at 591-92. 
As evidence in comparing the proffered salary to that offered to other assistant trainers/riders in the 
United State ,on appeal the petitioner 'submitted salary information for Animal Care and Service 
Workers from the U.S. Bureau of Labor Statistics Occupational Outlook Handbook, 2012-13 Edition. 
According to this information, in May 2010 the highest 10 percent of animal train ers nationwide earned 
more than $53,580 . The medi an annual wage of animal trainers was $26,580 for the same period, and 
the lowest 10 percent earned less than $17,240. In addition, the petition er submitted salary 
inform ation for two assistant horse trainer positions in Florida, each paying an annual salary of 
$37,000. 
As noted by the . director, the petitiOner did not establish through the submission of objective 
evidence that the beneficiary ' s offered annual salary of $35,000 meets the criteria of a "high salary" 
in her field. 
Accordingly, the petitioner has not established that the beneficiary meets the evidentiary criterion at 8 
C.F.R. 214.2(o)(3)(iv)(B)(6). 
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Page 12 
B. Comparable Evidence 
We further acknowledge that the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) provides "[i]fthe criteria in 
paragraph (o)(3)(iv) of the section do not readily apply to the beneficiary's occupation, the petitioner 
may submit comparable evidence in order to establish the beneficiary's eligibility." It is clear from the 
use of the word "must" in 8 C.F.R. § 214.2(o )(3)(iv) that the rule, not the exception, is that the 
petitioner is required to submit evidence to meet at least three of the regulatory criteria. Thus , it is the 
petitioner's burden to explain why the regulatory criteria are not readily applicable to the beneliciary's 
occupation and how the evidence submitted is "comparable" to the objective evidence required at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(l) through (6). 
The petitioner claimed eligibility under the "comparable evidence" regulation in its response to the 
director's request for evidence, in addition to claiming eligibility under the criteria at. 8 C.F.R. 
§§ 214.2(o)(3)(iv)(B)(3), (5) and (6). 5 
Nonetheless, the regulatory language precludes the consideration of comparable evidence in this 
case, as there is no indication that eligibility for 0-1 classification in the beneficiary's occupation as 
an assistant horse trainer/rider cannot be established by submitting documentation relevant to at least 
three of the six criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B). In fact, as indicated in this decision, 
counsel mentions evidence in his brief that specifically addresses four of the six criteria at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B). An inability to meet a criterion , however, is not necessarily evidence that the 
criterion does not apply to the beneficiary's occupation. Moreover, although the petitioner failed to 
claim any additional criteria, we find it reasonable to believe that an assistant horse trainer/rider could, 
for example, have achieved national or international recognition for achievements or have a record of 
major commercial or critically acclaimed successes. 
Where an alien is simply unable to meet or submit documentary evidence of three of these criteria, 
the plain language of the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) does not allow for the 
submission of comparable evidence. 
C. Final Merits Determination 
Kazarian sets forth a two-part approach where the evidence is first counted and then considered in the 
context of a final merits determination. However, as discussed above, the petitioner has not established 
eligibility under any of the eligibility criteria, of which three are required under the regulation at 
8 C.F.R. § 214.2(o)(3)(iv)(B) . 
Notwithstanding the above, a final merits determination considers all of the evidence in the context of 
whether or not the petitioner has demonstrated: (1) that the beneficiary has a high level of achievement 
5The AAO notes that the petitiOner did not specifically claim eligibility under the criteria at 8 C. F. R. 
§ 214.2(o)(3)(iv)(B)(l) in response to the director's RFE, although as stated above counsel addresses this criterion on 
appeal, asserting that the petitioner previously submitted evidence to fulfill this evidentiary requirement. 
(b)(6)
Page 13 
in the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered 
to the extent that she is renowned, leading, or well-known in the field of arts, pursuant to 8 C.F.R. 
§ 214.2( o )(3)(ii); and (2) that the beneficiary is recognized as being prominent in her field, pursuant to 
8 C.F.R. § 214.2(o)(3)(iii). See Kazarian, 2010 WL 725317 at *3. 
In this case, we concur with the director's finding that the petitioner has not established that the 
beneficiary has a high level of achievement in the arts evidenced by recognition substantially above 
what is ordinary encountered or that the beneficiary is prominent to the extent that she could be 
considered renowned , leading or well-known in the field of horse training. Therefore, the director 
denied the petition. 
The specific deficiencies in the documentation submitted by the petitioner have already been 
addressed in our preceding discussion of the regulatory criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B) . The 
petitioner submitted documentation relating to the beneficiary's education, employment history, and 
achievements. The submitted evidence is not indicative of the beneficiary's prominence in the field 
and there is no indication that her individual achievements have been recognized to the extent that 
she is leading, renowned or well-known in her field. 
This classification focuses on the beneficiary's individual achievements and recognition within her 
field. The petitioner has provided little evidence of such recognition beyond providing testimonials 
from the beneficiary's prior employers and colleagues and has failed to establish that the beneficiary 
has already risen to the level where she is performing lead or critical roles for organizations or 
productions that have a distinguished reputation. 
The AAO notes that four out of the six criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B) require the 
petitioner to submit various types of published materials to establish the beneficiary's recognition. 
Therefore; it is significant that the petitioner has not submitted any evidence that the beneficiary's 
name has ever appeared in any publication based on her reputation or achievements. Absent 
evidence that the regulatory criteria are not applicable to the beneficiary's occupation, pursuant to 
8 C.F.R. § 214.2(o)(3)(iv)(C), the petitioner must submit some published materials about the 
beneficiary in order to establish her eligibility for this classification. It is impossible to include the 
beneficiary among the group of fashion designers recognized in the field as leading, renowned or 
well known if the petitioner does not establish that she has received some publicity based on her 
reputation or achievements. 
Notwithstanding the several opinions in the record, the fact remains that the evidence consists almost 
entirely of testimonial evidence. Furthermore, it must be emphasized that the favorable' opinions of 
experts in the field, while not without evidentiary weight, are not a solid basis for a successful 
extraordinary ability claim. 6 Unusual in its specificity, section 10l(a)(15)(0)(i) of the Act clearly 
6Lctters may generally he divided into two types of testimonial evidence: expert optmon- evidence and written 
testimonial evidence. Opinion testimony is based on one 's well-qualified belief or idea, rather than direct knowledge of 
the facts at issue. Black's Law Dictionary 1515 (8th Ed . 2007) (~efining "opinion testimon y"). Written testimonial 
evidence, on the other hand , is testimony about whether something occurred or did not occur. based on the witne ss • 
direct personal knowledge. /d. (defining ·'written testimony ") ; see also id at 1514 (defining "a ffirmative testimony· ·). 
(b)(6)
Page 14 
requires "extensive documentation" of the alien's achievements. Again, USCIS may, in its discretion , 
use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I&N Dec. at 795. However, as noted above, USCIS is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought. /d. Here , all of 
the persons providing testimo .nial evidence are personally acquainted with the beneficiary , and have 
worked as her employers or colleagues. Again, when written by independent experts, testimonials 
solicited by an alien in support of a nonimmigrant petition are of less weight than preexisting, 
independent evidence of recognition in the field. 
The conclusion we reach by considering each evidentiary criterion separately is consistent with a 
review of the evidence in the aggregate. Even in the aggregate, the evidence does not distinguish the 
beneficiary as a horse trainer who has achieved a level of distinction to the extent that she is 
considered renowned, leading, or well-known in the field. 8 C.F.R. § 214.2(o)(3)(ii). The 
beneficiary relies primarily on the praise of her employers and colleagues. Nothing in the decision of 
the AAO should be seen as an attempt to minimize the accomplishments or obvious talent of the 
beneficiary or as a comment on the criteria used by the petitioner to select persons for positions. 
Indeed, as many of the testimonial letters make clear, the beneficiary shows great promise and 
potential in the field of horse training and appears to be on a path that could lead her to the type of 
prominence required for this visa classification. 
While the evidence may distinguish the beneficiary from other young horse trainers with less formal 
training and innate talent, the petitioner must establish that the beneficiary is recognized based on her 
own reputation as leading, renowned, or well-known compared to other professional assistant horse 
trainers. 
The eVidence ·is not persuasive that the petitioner's achievements set her significantly above <tlmost 
all others in her field at a national or international level. Accordingly, the appeal will be dismissed. 
D. The Beneficiary's Area of Extraordinarily Ability 
The petitioner sought to classify the beneficiary as an alien of extraordinary ability in the arts, and the 
director applied the evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iv). The petitioner bears the burden 
of proof with respect to the specific visa classification that they request on the Form 1-129 and 
cannot be required to meet the burden of proof for an alternative classification . USCIS will only 
consider the visa classification that the petitioner annotates on the petition, and has no authority to 
consider other classifications in the alternative. 7 
Depending on the specificity, detail, or credibility of a letter, USCIS may give the document more or less persuasive 
weight in a proceeding. The Board of Immigration Appeals (the Board) has held that testimony should not be 
disregarded simply because it is "self-serving." See, e.g., Matter ofS-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The Board also held, however : "We not only encourage, but require the introduction of corroborative testimonial 
and documentary evidence, where available." /d. If testimonial evidence lacks specificity, detail , or credibility, there is a 
there is a greater need for the petitioner to submit corrobative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
7 
The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the specifically requested 
classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an alternate 
classification. Brazil Quality Stone s, Inc., v. Chertoff, Slip Copy , 2008 WL 2743927 (9th Cir. July HI, 200R). 
(b)(6)
Page 15 
However, we agree with the director's statement that, rather than seek to classify an assistant horse 
trainer/rider as an alien of extraordinary ability in the arts, the petitioner should have sought 
. classification of the beneficiary as an alien of extraordinary ability in athletics . 
For purposes of the 0-1 classification, the applicable definition of "arts" at 8 C.F.R. § 214.2(o)(3)(ii) 
is as follows: · 
Arts includes any field of creative activity or endeavor such as, but not limited to, fine 
arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts 
include not only the principal creators and performers but other essential persons such 
as, but not limited to, directors, set designers, lighting designers, sound designers, 
choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical 
supervisors, costume designers, makeup artists, flight masters, stage technicians and 
animal trainers. 
Emphasis added. 
The AAO can find no basis for including an assistant trainer/rider of thoroughbred horses for all­
stake horse-racing among this group of creative workers, even though we acknowledge that the 
beneficiary's work requires some degree of creativity. The beneficiary is claimed to be responsible 
for assisting in training , conditioning and developing thoroughbred racing horses for racing events. 
The petitioner's employment agreement with the beneficiary lists the beneficiary's responsibilities as 
requiring such tasks as employing individualized training methods for each horse, instructing 
jockeys · on the proper handling of individual horses , riding the horses for exercising and 
conditi·oning, substituting for the trainer when necessary, and other athletics-related matters. We 
agree with the director that while certain types of animal training, such as animal acts and circuses , 
are among this group of creative workers, the beneficiary's field is properly classified as "athletics. "K 
The regulation at 8 C.F.R. § 214.2( o )(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics means a 
level of expertise indicating that the person is one of the small percentage who have 
arisen to the very top of the field of endeavor. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive for 
aliens in the fields of business, education, athletics, and the sciences. See 59 FR 41~1~, 418EJ 
(August 15, 1994); 137 Cong. Rec. S18242, 18247 (daily ed., Nov. 26, 1991) (comparing and 
discussing the lower standard for the arts). 
In a policy memorandum, the legacy Immigration and Naturalization Service (INS) emphasized: 
s The director also noted that the petitioner had previously successfully petitioned for the beneficiary in the 
nonimmigrant P-lS classification, as essential support personnel for a P-1 athlete. 
(b)(6)
Page 16 
It must be remembered that the standards for 0-1 aliens in the fields of business, 
education, athletics, and the sciences are extremely high. The 0-1 classification 
should be reserved only for those aliens who have reached the very top of their 
occupation or profession. The 0-1 classification is substantially higher than the old 
H-1B prominent standard. Officers involved in the adjudication of these petitions 
should not "water down" the classification by approving 0-1 petitions for prominent 
aliens . 
Memorandum, Lawrence Weinig, Acting Asst. Comm'r., INS , "Policy Guidelines for the 
Adjudication of 0 and P Petitions" (June 25, 1992). 
While the director determined that the beneficiary does not meet the lower standard of 
"distinction" applicable to aliens of extraordinary ability in the arts, the petitioner has also not 
submitted evidence that would satisfy the regulatory criteria applicable to aliens of extraordinary 
ability in athletics at 8 C.F.R. § 214.2(o)(3)(iii)(A) or (B), nor has it established through 
submission of extensive evidence that the beneficiary has a demonstrated record of sustained 
national or international acclaim as an assistant horse trainer/rider, or that she is one of the small 
percentage who have arisen to the very top of her field. 8 C.F.R. § 214 .2(3)(ii). For this additional 
reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D . 
Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO conducts appellate review on a de novo basis). For this additional 
reason, the petition cannot be approved. 
II. Conclusion 
Review of the record does not establish that the beneficiary has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim or to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. The extraordinary ability provisions of this visa classification are intended to be 
highly restrictive. See 137 Cong . Rec. S18247 (daily ed., Nov. 16, 1991). In order to establish 
eligibility for 0-1 classification, the petitioner must establish that the beneficiary is "at the very top" of 
her field of endeavor. 8 C.F.R. § 214.2( o )(3)(ii). The beneficiary's achievements have not yet risen to 
this level. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. When the AAO denies a petition 
on multiple alternative grounds, a plaintiff can succeed on a challenge only if she shows that the 
AAO abused its discretion with respect to all of the AAO's enumerated grounds. See Spencer 
Enterprises, Inc. v. United States , 229 F. Supp. 2d at 1043. 
(b)(6)
Page 17 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.